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District Court (Fla.) Suggests Revocation of TCPA Consent Must be in Writing, But Allows Complaint to Stand Anyway

by Scott J. Hyman |

In Brook v. Suncoast Schools, FCU, 2012 WL 6059199 (M.D.Fla. 2012), Judge Hernandez-Covington suggests that revocation of consent under the TCPA is ineffective unless given in writing, but allowed the Complaint to stand. Suncoast further argues that, although the Cardosos have alleged that Suncoast “made multiple collection calls to [the Cardosos'] personal cell phone utilizing an automatic telephone dialing system… Read More

District Court (Ill.) Finds Art. III Standing for TCPA Claim; Finds that TCPA Plaintiff Need Not Plead Charge for the Call — Distinguishing Knutson v. Reply!, Inc., 2011 WL 291076, at *1 (S.D.Cal. Jan.27, 2011)

by Scott J. Hyman |

In Martin v. Leading Edge Recovery Solutions, LLC, 2012 WL 3292838 (N.D.Ill. 2012), Judge Lefkow found that a TCPA Plaintiff stated Article III standing under the ‘damages’ pleaded. Defendants argue that “injury in fact” should be equated with “actual damages,” and that plaintiffs' failure to allege actual damages indicates that they lack standing. Leading Edge asserts that plaintiffs must allege… Read More

District Court (Ill.) Finds Art. III Jurisdiction over Penalty-Only TCPA Claim; Finds Use of an ATDS Adequately Pleaded

by Scott J. Hyman |

In Torres v. National Enterprise Systems, Inc., 2012 WL 3245520 (N.D.Ill. 2012), Judge Der-Yeghiayan found a TCPA penalty-only lawsuit still conferred Article III ‘case-or-controversy’ jurisdiction over the case. NES argues that this court lacks subject matter jurisdiction over the TCPA claim based upon NES's contention that Torres lacks standing to bring a TCPA claim. Article III of the federal Constitution… Read More

District Court (Cal.) Dismisses TCPA-Text Message Class Action; Single Text Message Did Not Violate TCPA and Plaintiff Failed to Plead Use of an ATDS

by Scott J. Hyman |

In Ibey v. Taco Bell Corp., 2012 WL 2401972 (S.D.Cal. 2012), Judge Huff found that a single, confirmatory text message did not violate the TCPA, nor had Plaintiff pleaded the use of an ATDS.  Plaintiff filed a class action based on the following facts: Plaintiff alleges that on or about February 14, 2012, he responded to an invitation to complete… Read More

District Court (Cal.) Says Penalty-only Sought in TCPA Claim Still Conferred Article III Standing

by Scott J. Hyman |

We had hoped the issue would be addressed by the Supreme Court (as to RESPA) in Edwards v. First American Corp. 610 F.3d 514 (9th Cir. 2010), but SCOTUS dismissed cert. as improvidently granted.  So, the district court in Smith v. Microsoft Corp. 2012 WL 2975712 (S.D.Cal. 2012) addressed the issue whether a TCPA Plaintiff who otherwise had suffered no… Read More

9th Cir. Says TCPA “Consent” Not Part of Plaintiff’s Prima Facie Case, but Defendant’s Affirmative Defense

by Scott J. Hyman |

The Court of Appeals for the Ninth Circuit held in an unpublished decision, Grant v. Capital Management Services, L.P., 449 Fed.Appx. 598, 2011 WL 3874877 (9th Cir. 2011), that the Plaintiff need not plead consent as part of its prima facie case; the defendant bears that burden.  The unpublished decision dealt with whether the District Court erred in remanding the… Read More

District Court (Cal.) Imposes TCPA “Consent” Pleading Burden on Defendant; Says Merely Providing Cell Phone Number in Initial Transaction is Not Express Consent Because Express Consent Must Be “Clearly and Unmistakably Stated”

by Scott J. Hyman |

In Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden.  Absence of consent is not a pleading requirement imposed on a TCPA plaintiff. Hilton… Read More

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